Germany supports Taiwan’s participation in the WHA as an observer – putting policy before principle

Published: 26 May 2020 Author: Stefan Talmon

On 22 July 1946, the Republic of China (ROC), together with the United Kingdom, was the first State to become a member of the World Health Organization (WHO). In the last phase of the Chinese civil war, the Nationalist Government of the ROC under General Chiang Kai-shek was forced by its Communist opponents to abandon mainland China and to relocate to Taiwan. By proclamation of 8 December 1949, the Nationalist Government transferred the capital of the ROC from mainland China to Taipei, the capital of the island of Taiwan. On 1 September 1949, the Communist counter-government under Mao Tse-tung, which controlled all of mainland China, had proclaimed the foundation of the People’s Republic of China (PRC) in Beijing. On 5 May 1950, the ROC informed the Director-General of the WHO of its withdrawal from the organization, but in 1953 it resumed its participation. The question of China’s representation in the World Health Assembly (WHA) was first raised in 1953 when the credentials of the ROC delegation were accepted only after a formal vote. In the following years, the Union of Soviet Socialist Republics and other Eastern bloc countries regularly protested the non-representation of the PRC and launched several unsuccessful attempts to unseat the delegation of the ROC.

When in October 1971 the UN General Assembly recognized the representatives of the Government of the PRC as “the only legitimate representatives of China to the United Nations” and expelled the representatives of Chiang Kai-shek, this also predetermined the representation of the ROC (Taiwan) in the WHO, a specialised agency of the United Nations. In May 1972, the WHA decided “to restore all its rights to the People’s Republic of China and to recognize the representatives of its Government as the only legitimate representatives of China to the World Health Organization, and to expel forthwith the representatives of Chiang Kai-Shek from the place which they unlawfully occupy at the World Health Organization.”

For the next 25 years, there was no question of the representation of the ROC (Taiwan) in the WHO. It was only on 30 April and 1 May 1997 that several countries still recognizing the ROC (Taiwan) submitted a proposal for a supplementary agenda item to “Invite the Republic of China (Taiwan) to participate in the World Health Assembly as an Observer”. The General Committee of the WHA decided to recommend the rejection of the proposal to include a supplementary agenda item, and the Assembly, after an acrimonious debate, approved this recommendation. At the time, the United States and the majority of Committee members endorsed the view of the PRC that “as Taiwan was a province of China, only the Chinese Government was entitled to apply on its behalf for observer status”. The European Union Member States took the position that “the Health Assembly was not the appropriate forum for such a proposal.” For the next 11 years, proposals to put the invitation of the “Republic of China (Taiwan)”, the “health authorities of Taiwan”, or “Taiwan” on the agenda were brought to the WHA – and were rejected every year.

It was only on 28 April 2009 that, as a result of improving relations across the Taiwan Strait, the health authorities in Taipei received an invitation from the WHO Director-General to attend the 62nd WHO as an observer under the designation of “Chinese Taipei”. The participation of the health authorities in Taipei was made possible because the PRC Government “had given its consent to the participation of Taiwan, China, in the Health Assembly”. From 2009 to 2016 the authorities in Taiwan were represented as observers at the WHA. The letter of invitation sent by the WHO Director-General in May 2017, for example, stated in the relevant part:

“Recalling the United Nations General Assembly Resolution 2758 (XXVI) and WHA Resolution 25.1, and in line with the One-China principle as reflected therein, I wish to invite you to head a delegation from the Ministry of Health and Welfare, Chinese Taipei, to attend the Sixty-ninth World Health Assembly as an observer.”

This special arrangement came to an end in 2017 after a new administration assumed office in Taipei which called into question the “one-China principle” and relations between the PRC Government and the authorities on Taiwan consequently deteriorated.

This prompted 11 WHO Member States that still recognize the ROC (Taiwan) to submit a proposal for the inclusion of a supplementary agenda item, “Inviting Taiwan to participate in the World Health Assembly as an observer”. As in the years prior to 2009, the proposal was rejected. Similar proposals in 2018 and 2019 were equally unsuccessful. As a result, the authorities in Taipei strongly protested the PRC Government’s obstruction of Taiwan’s participation in the World Health Assembly.

In April and May 2020, 14 of the 15 countries that still recognize the ROC (Taiwan) once again submitted a proposal for a supplementary agenda item, “Inviting Taiwan to participate in the World Health Assembly as an observer”. Belize explained the proposal as follows:

“As COVID-19 spreads rampantly across the globe, it is more imperative than ever to include all relevant parties and stakeholders in combating this pandemic. The continued exclusion of Taiwan from WHO has seriously compromised the Organization’s overall disease prevention efforts, undermined the interests of its members, and endangered global health. Taiwan’s medical services and universal health care system are among the best, making Taiwan an ideal model for many WHO member states. Taiwan’s exceptional response to and containment of COVID-19 has also been lauded by the international community. By including a willing and capable partner such as Taiwan, WHO and the entire world would benefit greatly.

Prior to 2017, Taiwan was invited to participate as an observer for eight consecutive years. Taiwan’s professionalism and expertise were widely recognized and acclaimed by WHO and its members. Taiwan has proven to the world that it is a valuable and indispensable partner in the efforts to ensure that all peoples enjoy the highest attainable standard of health. At this critical juncture, it is vital for WHO once again to invite Taiwan to attend the WHA and include Taiwan in all WHO meetings, mechanisms, and activities.”

Unlike in earlier years, these States received express support from several Western States. In May 2020, Germany joined the United States and six other States (the “group of eight”) in sending a letter to the WHO Director-General in which the group requested the Director-General to invite Taiwan to attend the virtual 73rd WHA on 18-19 May 2020 as an observer. In the letter, the group stated that “Taiwan’s isolation from the global health community not only presents a serious public health concern, but is also an obstacle that hampers ongoing and future efforts.”

A year earlier, Germany had voiced support for Taiwan in Geneva without, however, mentioning its name. During the 72nd WHA in May 2019, the Federal Minister of Health, Jens Spahn, stated:

“Health for all also means there can be no white spots on the world map. Global health challenges do not stop at borders. Consequently, the WHO should be a forum for all relevant partners.”

The statement issued on 10 May 2019 by the German Institute Taipei, Germany’s de facto embassy in Taiwan, was more outspoken:

“Germany regrets very much that Taiwan did not receive an invitation to the World Health Assembly once again.

Participation in the World Health Assembly should be open to all parties who can make significant contributions to global health issues.

Taiwan makes great efforts and, as an aviation hub in Southeast Asia, is a key player in the fight against pandemics. It would be detrimental to world health if Taiwan remained a ‘blank spot’ on the world map of health.

Germany strongly opposes the politicization of global health issues. Germany would therefore welcome Taiwan’s meaningful participation in the World Health Organization’s involvement in efforts to meet the challenges that globalization brings to health and, together with other countries, has been working very hard with the WHO to support Taiwan’s participation as an observer.”

On 15 May 2020, the German Institute Taipei once again posted a clear message on its official Facebook page:

“Participation in the World Health Assembly should be open to all parties who can make significant contributions to global health issues and share their experiences in containing the coronavirus.

Taiwan makes great efforts and, as an aviation hub in Southeast Asia, is a key player in the fight against pandemics especially in the current COVID-19-pandemia. Germany would welcome Taiwan’s meaningful participation in the World Health Organization’s efforts and is, together with other countries, supportive of Taiwan’s participation in the World Health Assembly as an observer.”

On the same day, a spokesperson for the Federal Foreign Office stated during the government press conference:

“Germany has repeatedly advocated for the WHO to invite Taiwan to the World Health Assembly as an observer, as was the case from 2009 to 2016. The Federal Government is of the opinion that statehood is not a requirement for this. In a demarche to the WHO Secretariat on 7 May together with other countries, the Federal Government supported an invitation of Taiwan as observer and pleaded for a meaningful participation of Taiwan in the work the WHO, in particular with a view to combating the COVID-19 pandemic.”

The PRC strongly objected to the invitation of Taiwan as an observer to the WHA. In a letter to the WHO Director-General the PRC Government stated that the “participation of Taiwan, China in WHA should be handled in accordance to the one-China principle, as embodied in the UNGA Resolution 2758 and WHA Resolution 25.1. and recognized by the international community as a whole.”

This raises the question of whether Taiwan can be invited to the WHA as an observer, and who can issue such an invitation. Joining the United States and others in sending a letter to the WHO Director-General indicates that Germany shares the view of the U.S. Government that the Director-General has “every legal power and precedent to include Taiwan in WHA’s proceedings”. The matter seems, however, to be more complicated.

The status of “observer” is not foreseen in the WHO Constitution. There are only some limited references to observers in the Rules of the WHA. However, the concept of “quasi-permanent observer” has been developed over the years in the practice of the organization. Invitations to attend sessions of the WHA have been extended, in various manners, to

  1. Non-Member States (including the Holy See)
  2. States and territories having made application for membership
  3. The Sovereign Order of Malta
  4. National liberation movements recognized by the Organization of African Unity or by the League of Arab States
  5. Palestine
  6. National and international governmental organizations (including the United Nations and related organizations and UN agencies)
  7. National and international non-governmental organizations

The absence of a constitutional basis thus does not principally stand in the way of inviting observers to the sessions of the WHA. As the WHO Director-General noted:

“Thus there exist precedents suggesting that these invitations were issued on the basis of an implied term that such would be in accordance with the Constitution if its general purposes were respected.”

None of these precedents fits the case of Taiwan though. The quasi-statal entity has not claimed to be a State, nor has it made an application for membership as a territory which is not responsible for the conduct of its international relations. Its situation is not comparable to that of the Order of Malta. It also does not purport to be a governmental or non-governmental organization or a national liberation movement.

While invitations to attend sessions of the WHA have generally been extended by the Director-General on the basis of an analogy with Rule 3(2) of the WHA Rules of Procedure, in the case of national liberation movements and Palestine a decision to invite them “in an observer capacity” or “as an observer” was taken by the WHA itself. The latter two cases suggest that whenever an invitation is politically charged, the granting of observer status will not be dealt with by the Director-General, but will be decided by the WHA. This view is also shared by the WHO’s principal legal officer, Steven Solomon, who stated on 11 May 2020 with regard to an invitation to Taiwan that “divergent views” among Member States prevent the Director-General from extending such an invitation. He continued:

“To put it crisply, director-generals only extend invitations when it’s clear that member states support doing so, that director-generals have a mandate, a basis to do so. Today however, the situation is not the same. Instead of clear support there are divergent views among member states and no basis there for – no mandate for the DG to extend an invitation.”

Any decision on the participation of Taiwan will thus have to be taken by the WHA in the light of the Assembly’s power to interpret the WHO Constitution and of the existing precedents.

This leaves the question of whether the WHA could grant observer status to Taiwan. The Federal Government is correct that statehood is not a requirement for observer status in the WHA. The problem with Taiwan is, however, that the United Nations and the WHO adhere to the “one-China principle”, according to which there is only one State of China, of which Taiwan is an integral part. In May 1972, the WHA recognized the representatives of the Government of the PRC “as the only legitimate representatives of China to the World Health Organization”. This predetermines the question of Taiwan’s participation in the work of the WHA. Without the consent of the PRC Government, there can be no participation of Taiwan. This becomes clear from Articles 18(h) and 71 of the WHO Constitution, which provide that the WHA may invite national governmental or non-governmental organizations “only with the consent of the Government concerned”. What applies to national organizations must apply, a fortiori, to territorial units of a State. This is also confirmed by the fact that from 2009 to 2016 the health authorities in Taiwan were able to attend the WHA as observers under the designation of “Chinese Taipei” because the PRC Government had consented to this special arrangement. Any invitation to health authorities in Taipei against the expressed will of the PRC Government, especially under the secessionist designation of “Taiwan”, would call into question the “one-China principle” and the status of the PRC Government as the only legitimate representative of China to the WHO. This would constitute a grave violation of the territorial integrity of China and an interference in its internal affairs.

The Government of the Federal Republic of Germany (FRG), which from 1949 to 1990 followed a “one-Germany policy” and which for many years claimed to be the “sole legitimate representative of the German people”, should be particularly sensitive to these questions and be mindful of its own history. For more than 20 years, the FRG, which had become a member of the WHO in 1951, successfully worked behind the scenes to prevent the second German State – the German Democratic Republic (GDR) – from becoming a member of the WHO. Even after the GDR had submitted a formal application for membership in 1968, it was not allowed to send observers to the WHA until it was finally admitted on 2 May 1973.

The fact that for most of the last 48 years the health authorities in Taiwan were not able to participate in the WHA is not the result of a “politicization of global health issues”, as intimated by the Federal Government, but a legal consequence of the “one-China principle”. As long as Taiwan is considered to be a part of China, it will be for the PRC Government to decide on its participation in the WHA as an observer. Back in 1997, this view was expressly endorsed by, inter alia, the United States and not called into question by Germany and the other EU Member States. Legally and factually, nothing has changed since then. What has changed is the global political climate.

During the Trump presidency, the antagonism between the United States and China has been growing further. In Europe, China is also no longer seen as a trading partner or economic competitor but as a “systemic rival promoting alternative models of governance” which requires “a principled defence of interests and values”. It is of interest to note that the U.S.-initiated demarche by Germany and others to invite Taiwan to the WHA as an observer came right on the heels of the signing into law by U.S. President Donald Trump of the Taiwan Allies International Protection and Enhancement Initiative (TAIPEI) Act on 26 March 2020, which provides that it should be the policy of the United States to advocate “for Taiwan to be granted observer status in other appropriate international organizations”. On 30 March 2020, U.S. Secretary of State Michael Pompeo had said that the State Department would fully comply with the Act and do its best to assist Taiwan in having its “appropriate role” in the WHO.

Germany has tried to portray Taiwan’s participation in the WHA as an observer as a matter of global public health and a requirement of the successful fight against the COVID-19 pandemic, arguing that participation in the WHA “should be open to all parties who can make significant contributions to global health issues” and that there should not be “a ‘blank spot’ on the world map of health”. While Taiwan’s participation in the work of the WHO may be conducive to global public health, so would be the participation of Kosovo, Northern Cyprus, Abkhazia and several other (secessionist) territorial entities which are considered by the international community to be part of existing States and for that reason are denied membership or observer status in international organizations. There have always been “blank spots” on the world health map as a consequence of the application of legal principle. Thus, from 1949 to 1973 the Chinese mainland with an area of 9.3M km2 and a population then of between 550M and 890M people was denied representation in the WHA because the United Nations and the WHO considered the Government of the ROC – which exercised control only over Taiwan and a population then of some 7M to 15M people – as the legitimate representative of China.

Portraying Taiwan’s participation in the WHA as a health-related matter is nothing but a diplomatic smoke screen to cover a highly charged political issue. Since 1997, the WHO has become a major battleground for cross-strait relations. Being aware that membership or even observer status at the United Nations is beyond reach, the authorities in Taipei have chosen UN specialized agencies like the WHO as a testing ground for achieving an upgrade of their legal and political status vis-à-vis the PRC Government. While Germany might, for political reasons, want to support an upgrade of Taiwan, it cannot do so without calling into question the “one-China principle” as reflected in UN General Assembly Resolution 2758 (XXVI) and WHA Resolution 25.1. This may explain why Germany tried to persuade the WHO Director-General  to issue the invitation to Taiwan, rather than formally propose to put the item, “Inviting Taiwan to participate in the World Health Assembly as an observer”, on the agenda of the 73rd WHA.

This back-door strategy failed when the WHO Director-General took the position that in controversial cases such as Taiwan, he was not competent to issue invitations to the WHA. The proposed supplementary agenda item of inviting Taiwan was neither discussed nor decided at the May 2020 session of the WHA, but was postponed to later in the year when the assembly session will resume. Then, it will be time for Germany to show its colours and decide whether it really wants to put policy before principle.

Category: Statehood and recognition

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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